Today, in United States v. Arriaga-Pinon, --- F.3d ---, No. 16-50188 (9th Cir. 2017), the Court vacated the defendant's sentence because the district court erred in concluding his prior conviction under California Vehicle Code section 10851(a) was an aggravated felony.
The Court sidestepped the issue of whether its prior law on divisibility is still valid after United States v. Mathis, 136 S. Ct. 2243 (2016), although Chief Judge Thomas concurred to suggest it is not and that en banc review is appropriate.
Instead, the Court determined that, even under the modified categorical approach, the judicially noticeable documents were not sufficient to establish whether the defendant – who, in the plea colloquy, pled no contest to what the court described as “unlawful driving or taking of a vehicle in violation of Vehicle Code Section 10851(a)” – was convicted as a principal or as an accessory after the fact. Thus, the government could not meet its burden to establish the conviction qualified as an aggravated felony.
For those interested in a summary on how to determine divisibility post-Mathis -- and thus whether the modified categorical approach applies -- I suggest reading the concurrence.
